ON MOTION FOR REHEARING.
DAVIDSON, Judge.Appellant insists that no discretion is lodged in a trial court to determine injury where the jury has received new and other testimony during its deliberations, within the meaning of Sec. 7 of Art. 753, C. C. P., and that, when a violation of such statute is shown, the granting of a new trial is mandatory. While such is the general rule, yet there are exceptions, .as are pointed out in the authorities cited in our original opinion. However, another very good reason exists why the matter as here presented does not come within the meaning of the statute mentioned and does not constitute the receipt by the jury' of new and other testimony, and that is that the reference made by the jury to the fact that appellant had previously been convicted of a liquor charge and had served a term in the penitentiary was not first made known to the jurors by the reference thereto in the jury room. To the contrary, the appellant had admitted such' fact, and so testified thereto, upon cross-examination. It is true that, upon objection of his counsel to proof of such fact, the objection was sustained and the jury instructed to disregard the same. So, the reference thereto in the jury room was not to a matter or of a fact of which the jury did not have previous knowledge or did not already know. Under such circumstances, the reference made in the jury room was not, to the jurors, other testimony, or was not new to them.
In Williams v. State, 33 Tex. Cr. R. 128, 25 S. W. 629, members of the jury, during their deliberations of the case, read a *95newspaper carrying a statement or synopsis of the evidence adduced on the trial. This was held not to be new and other testimony within the meaning of the statute mentioned, because such newspaper article “contained no fact that was not introduced in the evidence on the trial,” and, therefore, was nothing more or less than a statement of the facts which were already known to the jury.
We think the rule is applicable and controlling here, because, in the instant case, the statement in the jury room was relative to a matter which all the jurors had heard as evidence in the case, although withdrawn from their consideration. The withdrawal of such testimony could take it from the jurors’ consideration, but it could not blot out of their minds the fact that they had heard the same before it was mentioned in the jury room.
So, the test here to be applied is not that which relates to the receipt by the jury of new testimony during its deliberations, but whether the facts show misconduct of the jurors generally by their disregard of the trial court’s instruction withdrawing from their consideration the facts referred to.
Iri such cases, the rule of probable injury is to be applied and the ma'tter determined in the light of an abuse by the trial court of his discretion in overruling the motion for new trial In view of the prompt suppression of the matter in the jur> room, and in the light of the facts as a whole, we are unable to reach the conclusion that appellant was prejudiced in the matter. We adhere to the conclusions expressed in the original opinion.
We are not unmindful of the fact that the holding in the Williams case, above referred to, was overruled in Hambright v. State, 84 S. W. 597, 47 Tex. Cr. R. 518. However, a careful examination of the statements made in the jury room in the two cases shows them to be materially different, for that in the Hambright case, supra, was clearly new testimony relating to a disputed issue in the case, and was not otherwise before or known to the jurors other than by the statement made by a member of the jury during its deliberations. As we have pointed out, such was not true in the Williams case, supra. Believing that the Williams case announces a correct rule, the holding in the Hambright case, in so far as it overrules the Williams case, is hereby overruled.
*96Appellant’s motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.